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WAITING PERIOD AND PARENTAL NOTIFICATION BEFORE
TERMINATION OF MINOR'S PREGNANCY.
Initiative Constitutional Amendment.

QUESTION

Should the California Constitution be amended to require notification of the parent or legal guardian of an unemancipated pregnant minor at least 48 hours before performing an abortion?

BACKGROUND
(From the LAO analysis)

In 1953, a state law was enacted that allowed minors to receive, without parental consent or notification, the same types of medical care for pregnancy that are available to an adult. Based on this law and later legal developments related to abortion, minors were able to obtain abortions without a parental consent or notification.

In 1987, the Legislature amended this law to require minors to either obtain the consent of a parent or a court before obtaining an abortion. However, due to legal challenges, the law was never implemented, and ultimately in 1997 the California Supreme Court struck it down based on the right to privacy. Unlike the U.S. Constitution, the state constitution specifically protects the right to privacy. Consequently, minors in the state currently receive abortion services to the same extent as adults. This includes minors in various state health care programs, such as Medi-Cal for low-income individuals.

(LWVC)
In November 2005, Proposition 73, a constitutional amendment to require, with certain exceptions, a physician to notify a parent or guardian at least 48 hours before performing an abortion on an unemancipated minor was on the ballot and failed.

The perceived problems by proponents include abortion, teen pregnancies, a parent's right to oversee the health care of children under 18, and state constitutional barriers to parental rights in the case of abortion.

PROPOSAL

Proposition 85 is virtually identical to Proposition 73. The primary difference is that Proposition 85 does not suggest a definition of the beginning of life as Prop. 73 did.

(From the LAO analysis)
This proposition amends the California Constitution to require, with certain exceptions, a physician (or his or her representative) to notify the parent or legal guardian of a pregnant minor at least 48 hours before performing an abortion involving that minor. (This measure does not require a physician or a minor to obtain the consent of a parent or guardian.) This measure applies only to cases involving an "unemancipated" minor. The proposition identifies an unemancipated minor as being a female under the age of 18 who has not entered into a valid marriage, is not on active duty in the armed services of the United States, and has not been declared free from her parents' or guardians' custody and control under state law.

A physician would provide the required notification in either of the following two ways:

1. Personal Written Notification. Written notice could be provided to the parent or guardian personally, e.g., when a parent accompanied the minor to an office examination.
2. Mail Notification. A parent or guardian could be sent a written notice by certified mail so long as a return receipt was requested by the physician and delivery of the notice was restricted to the parent or guardian who must be notified. An additional copy of the written notice would have to be sent at the same time to the parent or guardian by first-class mail. Under this method, notification would be presumed to have occurred as of noon on the second day after the written notice was mailed.

Exceptions to Notification Requirements

The measure provides the following exceptions to the notification requirements:

Medical Emergencies. The notification requirements would not apply if the physician certifies in the minor's medical record that the abortion is necessary to prevent the mother's death or that a delay would "create serious risk of substantial and irreversible impairment of a major bodily function."

Waivers Approved by Parent or Guardian. A minor's parent or guardian could waive the notification requirements and the waiting period by completing and signing a written waiver form for the physician. The parent or guardian must specify on this form that the waiver would be valid either (1) for 30 days, (2) until a specified date, or (3) until the minor's 18th birthday. Proposition 73 did not include this limitation. The form would need to be notarized unless the parent or guardian delivered it personally to the physician.

Waivers Approved by Courts. The pregnant minor could ask a juvenile court to waive the notification requirements. A court could do so if it finds that the minor is sufficiently mature and well-informed to decide whether to have an abortion or that notification would not be in the minor's best interest. If the waiver request is denied, the minor could appeal that decision to an appellate court.

A minor seeking a waiver would not have to pay court fees, would be appointed a temporary guardian and provided other assistance in the case by the court, and would be entitled to an attorney appointed by the court. The identity of the minor would be kept confidential. The court would generally have to hear and issue a ruling within three business days of receiving the waiver request. The appellate court would generally have to hear and decide any appeal within four business days.

The proposition also requires that, in any case in which the court finds evidence of physical, sexual, or emotional abuse, the court must refer the evidence to the county child protection agency.

State Reporting Requirements

Physicians are required by this proposition to file a form reporting certain information to the state Department of Health Services (DHS) within one month after performing an abortion on a minor. The DHS form would include the date and facility where the abortion was performed, the minor's month and year of birth, and certain other information about the minor and the circumstances under which the abortion was performed. The forms that physicians file would not identify the minor or any parent or guardian by name. Based on these forms, DHS would compile certain statistical information relating to abortions performed on minors in an annual report that would be available to the public.

The courts are required by the measure to report annually to the state Judicial Council the number of petitions filed and granted or denied. The reports would be publicly available. The measure also requires the Judicial Council to prescribe a manner of reporting that ensures the confidentiality of any minor who files a petition.

Penalties

Any person who performs an abortion on a minor and who fails to comply with the provisions of the measure would be liable for damages in a civil action brought by the minor, her legal representative, or by a parent or guardian wrongfully denied notification. Any person, other than the minor or her physician, who knowingly provides false information that notice of an abortion has been provided to a parent or guardian would be guilty of a misdemeanor punishable by a fine.

Relief From Coercion

The measure allows a minor to seek help from the juvenile court if anyone attempts to coerce her to have an abortion. A court would be required to consider such cases quickly and could take whatever action it found necessary to prevent coercion.

FISCAL EFFECTS
(From the LAO analysis)

The fiscal effects of this measure on state government would depend mainly on how these new requirements affect the behavior of minors regarding abortion and childbearing. Studies of similar laws in other states suggest that the effect of this measure on the birthrate for California minors would be limited, if any. If it were to increase the birthrate for California minors, the net cost to the state would probably not exceed several million dollars annually for health and social services programs, the courts, and state administration combined. We discuss the potential major fiscal effects of the measure below.

Savings and Costs for State Health Care Programs

Studies of other states with laws similar to the one proposed in this measure suggest that it could result in a reduction in the number of abortions obtained by minors within California. This reduction in abortions performed in California might be offset to an unknown extent by an increase in the number of out-of-state abortions obtained by California minors. Some minors might also avoid pregnancy as a result of this measure, further reducing the number of abortions for this group. If, for either reason, this proposition reduces the overall number of minors obtaining abortions in California, it is also likely that fewer abortions would be performed under the Medi-Cal Program and other state health care programs that provide medical services for minors. This would result in unknown state savings for these programs.

This measure could also result in some unknown additional costs for state health care programs. If this measure results in a decrease in minors' abortions and an increase in the birthrate of children in low-income families eligible for publicly funded health care, the state would incur additional costs. These could include costs for medical services provided during pregnancy, deliveries, and follow-up care.

The net fiscal effect, if any, of these or other related cost and savings factors would probably not exceed costs of a few million dollars annually to the state. These costs would not be significant compared to total state spending for programs that provide health care services. The Medi-Cal Program alone is estimated to cost the state $13.8 billion in 2006-07.

State Health Agency Administrative Costs

The DHS would incur first-year state costs of up to $350,000 to develop the new forms needed to implement this measure, establish the physician reporting system, and prepare the initial annual report containing statistical information on abortions obtained by minors. The ongoing state costs for DHS to implement this measure could be as much as $150,000 annually.

Juvenile and Appellate Court Administrative Costs

The measure would result in increased state costs for the courts, primarily as a result of the provisions allowing minors to request a court waiver of the notification requirements. The magnitude of these costs is unknown, but could reach several million dollars annually, depending primarily on the number of minors that sought waivers. These costs would not be significant compared to total state expenditures for the courts, which are estimated to be $2 billion in 2006-07.

Social Services Program Costs

If this measure discourages some minors from obtaining abortions and increases the birthrate among low-income minors, expenditures for cash assistance and services to needy families would increase under the California Work Opportunity and Responsibility to Kids (CalWORKs) program. The magnitude of these costs, if any, would probably not exceed a few million dollars annually. The CalWORKs program is supported with both state and federal funds, but because all CalWORKs federal funds are capped, these additional costs would probably be borne by the state. These costs would not be significant compared to total state spending for CalWORKs, which is estimated to cost about $5 billion in state and federal funds in 2006-07. Under these circumstances, there could also be a minor increase in child welfare and foster care costs for the state and counties.

WHAT A YES OR NO VOTE MEANS

A YES vote means that the California Constitution should be amended to require notification of the parent or legal guardian of an unemancipated pregnant minor at least 48 hours before performing an abortion.

A NO vote means that the proposed amendments to the California Constitution to require notification of the parent or legal guardian will not be made.

SUPPORTERS SAY

• When parents are involved and minors cannot anticipate unrestricted access to abortion, they more often avoid the reckless behavior that leads to pregnancy.
• While a daughter under 18 can't get an aspirin from a school nurse without parental consent, surgical or chemical abortions can be performed without parental knowledge.
• More than 30 states have laws like Proposition 85, and many times after such laws have passed, there have been substantial reductions in pregnancies and abortions among minors.

OPPONENTS SAY

• Studies by the American Academy of Pediatrics show that 61 percent of pregnant teens tell their parents and 99 percent tell a trusted adult such as minister. Some teens live in dangerous homes, where a family member may be the impregnator (person who caused the pregnancy).
• The girls who don't tell fear being kicked out of the house, being punished, or having to confront a family member who caused the pregnancy.
• The California Supreme Court found "overwhelming" evidence that similar laws in other states cause real harm to teenagers and their families.

SUPPORT AND OPPOSITION

Official ballot arguments in support are signed by: William P. Clark, California Supreme Court Justice (Retired); Mary L. Davenport, M.D., Fellow, American College of Obstetricians and Gynecologists; Professor Joseph R. Zanga, M.D., FAAP, Past President, American Academy of Pediatrics; Professor Teresa Stanton Collett, J.D., National Authority on Parental Notification and Involvement Lawas; Jane E. Anderson, M.D., FAAP, Clinical Professor of Pediatrics

Official ballot arguments in opposition are signed by: Jack Lewin, M.D., California Medical Association; Robert L. Black, M.D., American Academy of Pediatrics, California District; Kathy Kneer, CEO, Planned Parenthood Affiliates of California; Donna W. Chipps, Executive Vice President, League of Women Voters of California; Bo Greaves, M.D., President, California Academy of Family Physicians; Jeanne A. Conry, M.D., Vice Chair, The American College of Obstetricians and Gynecologists, District IX, California

FOR MORE INFORMATION

Supporters

Yes on 85/Parents' Right to Know and Child Protection, 866-828-8355, www.Yeson85.net

Opponents

No on 85-for Real Teen Safety, 916-669-4802, www.noon85.com

Web Resources

Analysis by the Legislative Analyst's office

Voter Information Guide (ballot pamphlet)

Reports of campaign expenditures for ballot measures